'Shame' sentences put offenders under public scrutiny

Jan. 19, 2013

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Editor/Local Enterprise

Examples of creative sentences

• Winnebago County Judge Scott Woldt gave an Appleton woman convicted of theft in 2005 this option: Donate a year of her family’s Green Bay Packers season tickets or serve 90 days in jail. The woman, who took more than $3,000 from labor union accounts while serving as its treasurer, gave up the Packers tickets. • A municipal judge in Cleveland, Ohio, ordered a 32-year-old woman who committed a traffic offense last November to stand at an intersection and hold a sign that read, “Only an idiot would drive on the sidewalk to avoid a school bus.” • A Houston couple who stole money in 2010 was ordered to spend every weekend for six years at a busy intersection carrying a sign that read: “I am a thief. I stole $250,000 from a Harris County crime victims’ fund.” • In a 2012 case in Utah, a 13-year-old girl went to juvenile court for cutting a 3-year-old girl’s hair into a bob with a pair of cheap scissors. A judge offered to reduce the girl’s community service time if the teen’s mother chopped off her daughter’s ponytail in court. The mother complied. • In Ohio, a judge sentenced two teenagers found guilty of breaking into a church on Christmas Eve 2002 to march through town with a donkey and a sign reading, “Sorry for the jackass offense.” Source: News archives

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A man who stole Green Bay Packers tickets from his boss didn’t get a run-of-the-mill sentence when he landed in Outagamie County Judge John Des Jardins’ courtroom.

He got an embarrassing jolt of reality.

Des Jardins ordered the convicted thief to visit the area near Lambeau Field where tickets are bought and sold — the so-called “scalpers” section — and wear a sandwich board that blared the words: “I’m a convicted thief of Packers tickets.”

It was an example of “shame” or “creative” sentencing, which holds people up to public scrutiny — and, in some cases, ridicule — in an effort to convince them to not break the law again.

The most recent high-profile example occurred earlier this month when a northwestern Wisconsin judge ordered a man to not have any more children until he catches up on past due child support payments. Washburn County Judge Eugene Harrington also told the defendant that within three minutes of meeting any woman, he must tell her that he’s a convicted felon and has unpaid child support.

The sentence is similar to one handed down in December by a Racine County judge who ordered a father of nine who was behind on child support payments to refrain from having more children until he showed he could provide for them. In 2001, the Wisconsin Supreme Court upheld an appeals court ruling that affirmed a similar probation condition in Manitowoc County. The justices ruled that the man’s constitutional right to procreate wasn’t eliminated because he could still reproduce — if he supported his children.

There is considerable debate in legal circles whether the public shaming sentences are effective. Supporters say they’re necessary for some chronic or unrepentant offenders to get them to change their ways, while detractors say the sentences demean the judicial process and don’t have the desired effect.

“Judges aren’t parents; they shouldn’t be allowed to set personal restrictions at their whim,” said Neenah attorney Jeff Oswald. “And there’s no evidence that creative sentences deter crime more than any other sentence. How do you enforce things like not fathering kids?”

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Michael O’Hear, associate dean for research and professor of law at Marquette University Law School, said creative sentencing involves two primary types of punishment: Shaming and restricting personal liberties.

“People are very frustrated with crime,” O’Hear said. “And judges feel that public frustration.”

Sending a message

In the case involving the stolen Packers tickets, Des Jardins wanted to get the offender’s attention.

“The intent was that people would see (the Packers ticket thief wearing the sandwich board) and he would feel embarrassed and get the message to not steal again,” Des Jardins said.

It wasn’t the first time Des Jardins imposed a shame penalty as a condition of probation for a criminal defendant. Typically, it is offered as an alternative to jail.

In 2009, the longtime judge and former Outagamie County prosecutor ordered an Appleton teenager convicted of fleeing the state with his girlfriend in a stolen car to not date any girls for three years.

“He wasn’t mature enough to be dating girls yet,” Des Jardins said of the teen. “He was very cavalier about the whole thing and needed to be prevented from dating.”

Des Jardins also has ordered shoplifters and thieves to stand in front of businesses they victimized and wear sandwich boards that say, “I am a convicted thief.”

Still, Des Jardins stressed that creative sentencing is not for every offender.

“You can only use it in rare occasions,” he said. “If you go overboard on these kinds of things, it could result in bad consequences for those involved.”

Des Jardins, who said he hasn’t imposed a shame sentence in more than a year, said offenders must agree to the special punishment and they must be monitored by probation agents to ensure compliance.

“What is it going to take for them to stop? Maybe a little shaming is appropriate at times. At a certain time, you are at the end of the rope with some people,” he said. “If they are the kind of person who gets embarrassed, it would work as a deterrent. The best-case scenario is when they are embarrassed and able to reduce their jail sentence.”

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The difficulty, he said, is predicting whether a shame sentence will change the behavior of an offender.

“It’s really difficult to assess that at the time of the sentence,” Des Jardins said. “That’s why I’m reluctant to do these types of things. You can’t use it too much. It would be unwieldy and would make a joke out of the sentence. It’s really easy to go over the top with this.”

Consistency, fairness concerns

Criminal offenders face a wide array of sanctions — including restrictions of their liberties.

“Once you’re convicted of a crime, you’re situated differently from your fellow citizens,” O’Hear said. “Your rights can be severely restricted. There are limits. The Eighth Amendment prohibits cruel and unusual punishment. But it’s very, very rare for a court to find an amendment violation.

“It’s very loose and forgiving and it’s very rare for punishments to be found to be unreasonable.”

O’Hear said shaming sentences can be effective if they allow offenders to atone for their illegal acts, rather that simply condemning them publicly.

“The whole process should be set up to bring healing,” he said. “Shaming in isolation can be very psychologically damaging to a person. They think they are worthless and not valued by the community. It seems to set them up for future recidivism. They feel further alienated from the community.”

O’Hear said opponents believe offenders are being denied equal treatment under the law.

“The general concern that runs across this whole field of creative sentencing is that it’s not consistent with our ideals about equality and treating everybody alike when they’ve done the same thing,” he said. “People with same criminal records and same crimes should get the same sentences.”

Oswald agreed, saying it’s a matter of fairness.

“The public expects consistent consequences for the same type of criminal offense,” he said. “It’s not providing consistency in terms of punishment.”

Oswald agreed that offenders “have to give up a lot of liberties,” but said there are limits when it comes to harsh sentencing.

“Attorneys can object if the terms are unenforceable for probation or parole agents,” Oswald said. “It can’t be cruel and unusual.